Please Note: This Article is 7 years old. This increases the likelihood that some or all of it's content is now outdated.

As I say on my website,  “anyone can read a lease, but knowing what to look for is what really counts”.

Words have meanings, but words attract positive and negative connotations so, regardless of the meaning in a dictionary, it is possible to interpret the meaning of the word differently to what was intended. Theoretically, when you read a lease literally word for word, the impression given should be neutral but, in practice, can depend upon your point of view. The terminology and phrasing may be unfamiliar and a layman’s understanding differ from the legal definition.  It doesn’t help that paragraphs lack punctuation!

For an example of a difference in interpretation involving a seemingly innocuous word, the issue, which concerned the tenant’s permitted use of the premises, was whether the word ‘and’ was conjunctive or disjunctive. Conjunctive entitled the tenant to use the premises for two things; disjunctive limited the use to one thing or other, but not both.

Business tenancy case-law is littered with examples of differences in opinion over the interpretation of a word or phrase. The word ‘reasonable’ is one such example: the question is ‘reasonable to whom?’ In Ponsford v HMS Aerosols Ltd [1979],  where the rent upon review was to be a “reasonable rent for the demised premises”, the House of Lords held that the rent was to be that rent which the demised premises would command if let on the terms of the lease and for the period the assessed rent was to cover, and to include the tenant’s voluntary improvements.  It has also been suggested that the force of the word “reasonable” is to make clear that any exceptional or “freak” rent must be excluded: Cuff v J & F Stone Property Co Ltd [1979]

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Case-law is often summarised for quick reference but delve into the judgement and gems can be found. One of my favourites is the late Lord Denning’s “guidelines are not barriers, you can step over them at any time; you may need to”. Another, per Hong Kong Fir Shipping Company v Kawasaki Kisen Kaisha Ltd [1962], refers to Diplock LJ when he started talking about ‘synallagmatic contracts’ and indulged in what was said by one judge to be ‘gratuitous philological exhibitionism’.

I don’t profess to be scholarly in my writing-style, and my grammar is probably not what it should be, but time-consuming as it is I craft my writing with careful choice of words when advising clients and in my communications generally; and at least I know and practice the difference between it’s and its. Some years ago, in my newsletter for clients and contacts, I wrote about spelling mistakes in communications. I said that it doesn’t matter to me if clients cannot spell or their grammar leaves much to be desired: it’s a principal’s prerogative to express him- or her-self in writing as they wish. It does, however, matter that advisers are able to string a sentence and paragraph together in a way that leaves no room for doubt. For example, the word “it’s” is short for ‘it is’. Punctuation is a way for the writer to lead the reader in the direction that the writer wants the reader to take. If you can’t follow what I’m saying because its is used as the possessive rather than it’s as it should be then you’ll get lost! At the risk of being told to get a life whenever in a mood to be pedantic and mention that it’s should be its, or vice versa depending upon the context, I like the idea of finding fault as a quick way of identifying the hidden agenda. (Which is often a choice between ‘can’t be bothered’ and ‘I don’t agree with what I’m telling you, but my client is dictating terms’)

It is understandable that people generally don’t read the ‘small print’ in documents, but focus on the key terms and conditions. Apart from the fact the print is often smaller to deliberately deter scrutiny, landlords and tenants, their surveyors and other advisers, tend to leave the legal stuff to lawyers. Although I liaise with a client’s lawyers on the drafting and approval of documents, that degree of involvement in the documentation is unusual. There ought not be any difference between what clients agree and imagine they are letting themselves in for and what they discover they are committed to, but often there is.

It’s not only words and phrases in leases that need careful reading in case there is some interpretation that could benefit one party more than the other. Surveyors acting as arbitrator or independent expert need to be careful in choice of language when reasoning awards and determinations. In one instance where I was acting for a landlord, my stance over the use of language saved my client several thousand pounds. The matter concerned a rent review arbitration. The tenant, a multiple retailer, was also professionally represented. The award of rent was not unfavourable but the arbitrator said that part of the tenant’s share of the costs should be reimbursed by my client. The tenant’s surveyor sent me his invoice for my client to pay. I advised my client not to pay. I said that the word ‘reimburse’ meant that the tenant should pay the surveyor’s costs in the first instance, then invoice the landlord for the amount to be reimbursed. The tenant refused to pay their surveyor, reasoning a bookkeeping arrangement that could be short-cut, but I resisted. The tenant’s surveyor was livid, threatening to sue the landlord. I told him no reason to take out his annoyance on the landlord or me and he should look to his tenant-client in the first instance for payment. The arbitrator, asked to intervene, said that ‘reimburse’ was intended to mean the same as ‘pay’ but I told the arbitrator that had he wanted the landlord to pay the costs in the first instance he should’ve used the word ‘pay’. The matter dragged on for weeks. The tenant’s surveyor told me that the tenant would pay him but wasn’t inclined to do so as a matter of principle. In the end, the tenant did pay its surveyor. My client and I, sensing something fishy over the tenant’s attitude, had our suspicions confirmed a little while later when the parent tenant notified change of name of legal tenant, albeit the trading name of the business was unchanged. My client put the freehold investment up for sale by auction, mentioning the parent tenant’s previous name on the particulars. The buyer overpaid on the strength of tenant covenant, only to discover afterwards that the tenant was unstable. A few months later the tenant went broke and that was that. The landlord was never asked to reimburse the costs.

Occasionally, not often I hasten to add, in their reasoning for dispute resolution arbitrators, independent experts comment that my wording in submission and report is hard to follow. When you write something that makes sense to you, it’s difficult to know how else to put it. I like to avoid starting a following paragraph with the phrase  “in other words” because I think the previous paragraph should be easy to grasp, without needing to be re-phrased. Talking with a friend who is good at editing about the difficulty others  sometimes have in my way of expressing myself, the suggestion is not that the style is particularly hard to understand, so much as rather rich and consequently needing more concentration than a cursory skim.  In one review arbitration where the outcome was a slight increase, despite the tenant’s surveyor’s best efforts to procure nil increase, the tenant’s surveyor told the arbitrator than had my style been more succinct then the costs would have been lower. My defence, which I think put the arbitrator on the spot, was that had it not been for my style the award might not have been of a higher rent.

In my experience, I have not encountered that many surveyors whose reports are beautifully written.  Invariably, there is a considerable amount of ‘puff’ and generalisation, much of which can be taken as read and could appear in any other report. Often, the really important stuff, the nitty-gritty, lacks detailed explanation which might suggest an inference that the reader has some experience of the subject but could also be that the writer couldn’t be bothered.  Generally, surveyors are into figures, plans, pictures, all of which occupy a lot of space in a report and add to the number of pages, rather than words and words alone which, regardless of the style, are likely to condense the thickness of the report, and reduce costs of post and packing an otherwise weighty tome. To be less comfortable in writing as another form of self-expression is fair enough except that a photograph of a building taken from a different angle or when it’s raining could depict a completely different impression, plans are often for identification only, and figures can be manipulated and statistics downright misleading. Words, as I have said, can have positive and negative connotations, but have meanings that can at least be understood.

I do not know whether it’s because I’m not based in London or not a parent but I’ve noticed a trend for some surveyors, particularly younger ones, to be overly-agreessive almost to the point of bullying during the negotiating stages. Assuming they’re not as ugly as the experience conveys, I put it down to them being smokers, coffee and/or beer drinkers, all of whose ingredients have a habit of putting a person’s emotional mind into a state of stress without that person necessarily realising.  Although research into methods of negotiation shows that shouting angrily at someone can have the desired effect, negotiating regularly in an emotive or stressful state is unlikely to achieve a favourable outcome because the art of negotiation, as far as I’m concerned, is in getting the person to agree with you willingly, rather than through coercion. A consequence of being on the receiving end of a raised tone of voice is giving in for a quiet life. When I write, the overt is important but equally when you read between the lines it’s best you still agree with me.

In recent years, the personality-clashes and slanging-matches that used to be a feature of dispute resolution submissions and representations have largely disappeared as a consequence of the tightening of the criteria for the role of the parties’ surveyors.  Nowadays, any comments on the parties’ surveyors style are more likely to emanate from the arbitrator or independent expert themselves. Frankly, I think that a third-party surveyor criticising the mode of expression of one or both of the parties’ surveyors is not on. Just because the third-party surveyor is in a quasi-judicial capacity does not in my opinion, give him or her the right to express their personal views of the matter, particularly when the chances of that same third-party surveyor coming up against either or both of the respective parties’ surveyors on future occasions involving different matters is likely. The commercial property market is a small world. A judge in court, however, has a higher level of authority, as exemplified in Mylward v Weldon [1595]:

“FORASMUCH as it now appeared to this Court, by a report made by the now Lord Keeper, (being then Master of the Rolls,) upon consideration had of the plaintiff’s replication, according to an order of the 7th of May anno 37th Reginæ, that the said replication doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper, wherefore the plaintiff was appointed to be examined to find out who drew the same replication, and by whose advice it was done, to the end that the offender might, for example sake, not only be punished, but also be fined to Her Majesty for that offence; and that the defendant might have his charges sustained thereby; the execution of which order was, by a later order made by the late Lord Keeper the 26th of June, Anno 37th Reginæ, suspended, without any express cause shewed thereof in that order, and was never since called upou until the matter came to be heard, on Tuesday lost, before the now Lord Keeper; at which time some mention was again made of the same replication; and for that it now appeared to his Lordship, by the confession of Richard Mylward, alias Alexander, the plaintiff’s son, that he the said Richard himself, did both draw, devise, and engross the same replication; and because his Lordship is of opinion that such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant’s charge, and being fraught with much impertinent matter not fit for this Court; it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner, until he shall have paid 10/-. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this Court, for the abuse aforesaid.”

 

Please Note: This Article is 7 years old. This increases the likelihood that some or all of it's content is now outdated.

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